Makofane v S [2006] ZAFSHC 145 (2 March 2006)

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[2006] ZAFSHC 145
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Makofane v S [2006] ZAFSHC 145 (2 March 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A7/2004
In the appeal between:
STEPHEN NENZANI
MAKOFANE
Appellant
and
THE
STATE
Respondent
_____________________________________________________
JUDGMENT:
HANCKE, J
et
MATHEBULA,
AJ
_____________________________________________________
HEARD ON:
27 FEBRUARY 2006
_____________________________________________________
DELIVERED ON:
2 MARCH 2006
_____________________________________________________
[1] The appeal to this
court lies against both conviction and sentence. The regional
magistrate convicted the appellant of rape and
sentenced him to ten
(10) years imprisonment.
The facts are briefly as
follows:
On
the 3
rd
March 2002 the appellant raped Lettia Msea Kopini at Rocklands,
Bloemfontein. The complainant went to house number 964 Rocklands
to
look for her boyfriend Thembinkosi Shlangu. On arriving at house
964, the complainant did not find her boyfriend but found the
appellant and his grandmother. It is not clear whether the appellant
was asked or volunteered to accompany the complainant to
Thembinkosi’s
house. However, they both left to look for him at
his house situated at Itubeleng Chanani Informal Settlement.
[2] They had to walk
through the veld to Thembinkosi’s house. It is here that the
appellant raped her. On arriving at Thembinkosi’s
house she
immediately reported the matter to him. The three of them (i.e.
Thembinkosi, appellant as well as herself) went back to
house number
920 Nazo Street, Rocklands to report the matter to the grandmother.
Thereafter they went to the police to lay a charge
and later that
night the complainant was examined by Dr. van Aswegen.
[3] Mr. Skibi, on behalf
of the appellant, conceded that identity was not an issue because the
appellant and complainant were together
when she reported the matter
to Thembinkosi. He submitted that the complainant had engaged in
sexual intercourse three or four days
before the said date and it was
not clear as to whether the injuries could be traced back to the
alleged day. On the issue of a
torn blouse, he referred to the
complainant’s version that the appellant only removed her panty.
It was his view that the inconclusive
DNA results further point to
the possibility that the appellant did not rape her on that day.
[4] On
the issue of sentence, his submission was that the complainant did
not suffer any injuries. The rape was not premeditated
but happened
by chance. Furthermore, that there was no evidence of the
complainant suffering any emotional stress or trauma as a
result of
the offence.
[5] On behalf of the
respondent, Mr. Botha argued that the appeal must be dismissed. His
submission was that the appellant was asking
the court to speculate.
The totality of the evidence against the appellant was of such a
nature that the conviction was justified.
According to the complaint
her blouse was torn and this is corroborated by the recording of the
medical practitioner in the J88
form. The question is:- How did this
happen? This given the testimony in the matter points in the
direction of the appellant;
having raped the complainant. On
arriving at Thembinkosi’s house, the complainant immediately
reported the matter to him. According
to the medical practitioner,
there were injuries which were most likely sustained during sexual
intercourse. In total given this
evidence, the appellant’s version
is just a bare denial.
[6] He further submitted
that the sentence imposed was in accordance with the relevant law.
The court of appeal should not lightly
interfere with the sentence
imposed by a trial court. Among others, it was not the first time
that the appellant found himself on
the wrong side of the law. The
offence committed was of a serious nature which needed to be dealt
with firmly.
[7] I
agree with Mr. Botha that the totality of evidence in this matter is
overwhelming against the appellant. Both the appellant
and the
complainant did not have any bad blood against each other. The
complainant’s version is corroborated in material respects
even by
the appellant’s witness. There is evidence of sexual intercourse.
In my view the appeal ought to fail in this regard.
[8] It is trite law that
the court of appeal should not lightly interfere with sentence. Rape
is a heinous crime that murders the
soul of the victim. It is the
misuse of power against the vulnerable in the society. Perpetrators
must be dealt with, with the
full might of the law. The sentence
must be deterrent particularly as this offence appears to be running
amok. Society needs to
be protected and it is the duty of the courts
to do so. In this matter the appellant despite denigrating his
victim continues to
show no remorse. I can find no reason that makes
the sentence shockingly inappropriate.
[9] I
make the following order:-
(a) The appeal is
dismissed.
___________________
M.A.
MATHEBULA, AJ
I concur.
________________
S.P.B. HANCKE, R
On
behalf of the appellant: Adv. N.L. Skibi
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. J. Botha
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/em